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Dykema Gossett PLLC
Dykema Gossett PLLC

Consumer Financial Services Law Blog

Consumer Financial Services Law Blog

News and analysis regarding Consumer Financial Services litigation and regulation, and activities of the Consumer Financial Protection Bureau


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Showing 11 posts in Telephone Consumer Protection Act (TCPA).

Sixth Circuit Issues Important TCPA Ruling on “Prior Express Consent”

On February 12, 2016, the United States Court of Appeals for the Sixth Circuit issued its opinion in Baisden v. Credit Adjustments, Inc., 15-3411 (CA 6) (for publication), affirming dismissal of a purported class action under the Telephone Consumer Protection Act (“TCPA”). In Baisden, plaintiffs were the recipients of medical services from Mount Caramel Hospital in Ohio. As part of the care provided, plaintiffs received anesthesiology services from Consultant Anesthesiologists, an anesthesiologist group working within the hospital. When plaintiffs failed to pay for the services rendered, Consultant Anesthesiologists sent their accounts to debt collector, Credit Adjustments. Credit Adjustments used an automatic telephone dialing system and prerecorded messages to contact plaintiffs on their cell phones to request payment. Read More ›

Supreme Court Says Companies Cannot Use Settlement Offers to Overcome Class Actions

On January 20, 2016, the Supreme Court ruled that companies cannot defeat class action suits by making settlement offers to named plaintiffs. In a 6-3 decision, the Justices held in Campbell-Ewald Co. v. Gomez that an offer of compensation, equal to or greater than the maximum potential individual damages to a defendant, does not erase a defendant’s interest in a case. The ruling could significantly hinder companies’ ability to overcome pending class action suits. Read More ›

Pushback From Third Circuit Court of Appeals on Expanding Definition of “Autodialer,” Exposing Businesses to TCPA Liability

On October 23, 2015, the Court of Appeals for the Third Circuit offered some pushback against autodialer regulations under the Telephone Consumer Protection Act (“TCPA”). See Dominguez v. Yahoo, Inc., 2015 U.S. App. LEXIS 18460 (3d Cir. Pa. Oct. 23, 2015), available here. Although non-precedential, the recent decision demonstrates that courts may look to limit the scope of the FCC’s authority to regulate certain technologies under the TCPA in light of the FCC’s recent declaratory ruling. Read More ›

Seventh Circuit Overrules Rule 68 Precedent in Chapman v. First Index, Inc.

The Seventh Circuit overruled its longstanding prior precedent in an opinion issued on August 6, 2015, in Chapman v. First Index, Inc., No. 09 C 5555 (7th Cir. 2015). With this ruling, the Seventh Circuit joined the Second and Ninth Circuits in holding that a defendant’s offer of full compensation does not render the case moot. Read More ›

FCC Broadens the TCPA

UPDATE: FCC Issues Ruling on TCPA Effective July 10, 2015

Today the FCC released its recent clarifications to important issues under the Telephone Consumer Protection Act. The ruling is effective immediately. Click here to read the ruling.

Update posted on July 13, 2015 by Jared Kemper


The Federal Communications Commission (“FCC”) met on June 18, 2015, to vote on a proposed ruling on the Telephone Consumer Protection Act (“TCPA”). According to the FCC, the purpose of the meeting was to consider a “Declaratory Ruling and Order reaffirming the TCPA’s protections against unwanted robocalls, encouraging pro-consumer uses of robocall technology and responding to a number of requests for clarity from businesses and other callers.” Read More ›

The Eleventh Circuit Defines “Called Party” Under The TCPA

The Eleventh Circuit Court of Appeals has defined the term “called party” under the Telephone Consumer Protection Act of 1991 (TCPA) as the subscriber to the cell phone service or user of the cell phone called, regardless of who the creditor intended to call. In Breslow v. Wells Fargo Bank, N.A., 2014 U.S. App. LEXIS 10457 (11th Cir. June 5, 2014), the defendant-creditor did not have consent from the “called party” to autodial the cell phone number because the consent was obtained from the party that formerly had the cell phone number that was called. The Eleventh Circuit affirmed summary judgment on liability in the called party’s favor.   Read More ›

The Hobbs Act Prevails Again: “Prior Express Consent” Under The TCPA Does Not Require Explicit Statement That an Autodialer May Be Used

The Administrative Orders Review Act (aka the Hobbs Act) provides exclusive jurisdiction to the federal court of appeals to determine the validity of all final orders of the Federal Communications Commission (FCC) and also specifies that any party aggrieved by a final order of the FCC may file a petition to review the order in the court of appeals with appropriate venue within 60 days after its entry.  On January 28, 2014, the United States District Court for the Central District of California held that “prior express consent” under the Telephone Consumer Protection Act (TCPA) exists when a cell phone number is voluntarily provided to a company.  The Court rejected the standard argument by TCPA plaintiffs’ lawyers that there must be a disclosure that the number will be autodialed in order for the provision of the number to be “prior express consent” under the TCPA.  The Court’s reliance on the Hobbs Act reinforces the need to use all the tools in your “TCPA tool box” when representing defendants in TCPA cases.  Read More ›

FCC Ruling : Seller May Be Liable For Third-Party TCPA Violations

The Federal Communications Commission’s (FCC) long awaited ruling regarding agency liability under the Telephone Consumer Protection Act (TCPA) is a mixed bag for those companies that rely on third-party telemarketers. In its ruling issued on May 9, 2013, the FCC declared that sellers “may be held vicariously liable under federal common law principles of agency including not only formal agency, but also principles of apparent authority and ratification.” The FCC did not hide the fact that this intended to provide “appropriate incentives” for companies “to monitor and police TCPA compliance by third-party telemarketers.” The FCC, however, declined to extend vicarious liability to calls made simply “to aid or benefit the seller,” if an agency relationship does not exist between the seller and the third-party telemarketer. Because this is such a hotly litigated issue, the FCC’s ruling far from settles the matter as Courts will be forced to determine, on a case-by-case basis, whether an agency relationship exists. Read More ›

Federal Court Rejects FCC's Position on "Prior Express Consent" Under the TCPA

On May 8, 2013, Judge Robert Scola, Jr. of the United States District Court for the Southern District of Florida rejected both the application of the Hobbs Act and the Federal Communications Commission’s (FCC) position that providing a cell phone number to a business/creditor is “prior express consent” under the Telephone Consumer Protection Act.  By restricting what constitutes “express prior consent,” in contradiction to both the FCC’s position and other court rulings, Judge Scola’s opinion creates additional uncertainty as which autodialed or prerecorded/automated messages violate the TCPA.  Read More ›

Express Consent Question Prevents TCPA Class Certification--Again

In a slowly developing chain of rulings reaching the same conclusion, a federal district court denied a plaintiff’s motion for class certification on TCPA claims because the individual question of express consent by each purported class member defeated commonality and predominance under Federal Rule of Civil Procedure 23. Read More ›